Capitol Report

March 3, 2014

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA asamicusin appellate court matters. To learn more, visitnjsba.com.

NJSBA RECENT ACTION IN TRENTON

Criminal Law

A-2640 (PDF) (Vainieri Huttle) (NJSBA opposes) Authorizes issuance of restraining orders for situations in which domestic violence statutes do not apply. On Feb. 20, the bill was introduced and referred to the Assembly Women and Children Committee.

The New Jersey State Bar Association has concerns with this bill, as the law currently provides the issuance of restraining orders in non-domestic violence situations and the association believes this legislation has the potential to trivialize the plight of true victims of domestic violence.

Criminal Law

S-1259 (PDF) (Turner) (NJSBA opposes) Authorizes the court to issue restraining orders to defendants charged with a crime as a condition of release on bail. On Feb. 25, the bill was introduced and referred to the Senate Judiciary Committee.

While the New Jersey State Bar Association supports the goal of reducing gang violence, the association does not believe this bill would have a favorable impact on the reduction of overall gang violence in New Jersey. In addition, the New Jersey courts, working in conjunction with law enforcement and prosecutors, already have the capabilities to provide relief to this ongoing issue through domestic violence laws, drug courts, and relief victims/witnesses facing possible intimidation. The NJSBA also believes shifting the burden to the defendant as a prerequisite to receiving bail would interfere with the “right to bail” established by the New Jersey Constitution.

Elder and Disability Law

S-1303 (PDF) (Allen) Concerns special needs trusts for persons with developmental disabilities. On Feb. 25, the bill was introduced and referred to the Senate Health, Human Services and Senior Citizens Committee.

Family Law

S-1261 (PDF) (Turner) (NJSBA opposes) Clarifies the intent of the Legislature that the attempt or conspiracy to commit certain offenses may constitute acts of domestic violence. On Feb. 25, the bill was introduced and referred to the Senate Judiciary Committee.

The New Jersey State Bar Association recognizes the devastating impact of domestic violence; however, the association believes there are both substantive and institutional concerns with this legislation. Substantively, this bill adds inchoate crimes, or an attempt to commit a prohibited act, as an offense under the domestic violence statute. Such crimes are, arguably, the most difficult form of prohibited behavior to prosecute. They are also among the most troublesome and controversial forms of substantive criminal law under the current criminal statutes, as they represent a dramatic expansion of the scope of criminalized human behavior and elicit a host of constitutional concerns.

Further, institutionally the court system is already inundated with existing domestic violence applications and the association believes this legislation will significantly increase the number of such pleadings filed before the court.

A-2657 (PDF) (Vainieri Huttle) (NJSBA opposes) Establishes the authority of the court to order electronic monitoring of certain convicted domestic violence offenders. On Feb. 20, the bill was introduced and referred to the Assembly Women and Children Committee.

The New Jersey State Bar Association believes this bill may result in a domestic violence defendant being made aware of the locations frequented by a domestic violence victim. Furthermore, there is no end date for monitoring of a defendant under the bill, which implicates invasion of privacy concerns.

Judicial Administration

A-2602 (PDF) (Diegnan) (NJSBA supports) Imposes limits on fees charged for discovery in municipal court matters. On Feb. 20, the bill was introduced and referred to the Assembly Judiciary Committee.

The New Jersey State Bar Association supports this legislation based upon a statewide survey of municipal court practitioners, which found that problems exist with disparate municipal discovery costs. The fees for discovery in municipal court are not universal and can vary greatly throughout the state, ranging from $10 in some municipalities for basic paper discovery to $100 in others for the duplicating of videotapes. The association is concerned that this arbitrary discovery fee setting interferes with the administration of justice in New Jersey’s municipal courts because clients are discouraged from advancing claims due to the costs associated with preparing an adequate defense. Further, the association believes the cost of justice should not be dependent upon the municipality in which one receives a summons.

Accordingly, the New Jersey State Bar Association believes there should be uniform standards for municipalities to follow in setting municipal court discovery fees, such as in the cities of Newark and Lakewood, which track the Open Public Records Act (OPRA). That law establishes copying charges of $.75 per page for the first 10 pages; $.50 per page for the next 10 pages; and $.25 per page thereafter. The NJSBA supports this fee schedule, but acknowledges there is no specific authority on the subject. This bill seeks to establish that authority by supplementing OPRA and limiting discovery fee charges to the fees established for other government documents.

The Legislature has already determined fair and reasonable fees for state government public records under OPRA, and the association believes such policies should be extended to municipalities.

Lesbian, Gay, Bisexual and Transgendered Rights

A-2659 (PDF) (Vainieri Huttle) (NJSBA supports) Revises the procedure for issuance of an amended birth certificate for a person who has undergone a change in sex. On Feb. 20, the bill was introduced and referred to the Assembly Human Services Committee.

The New Jersey State Bar Association supports this legislation because a birth certificate is one of the most important documents a person possesses and is used to obtain other documentation, including but not limited to, passports, driver’s licenses, marriage licenses and other significant materials. Under the current law, an individual is required to undergo expensive and/or medically risky surgery that is generally not covered under most health insurance plans, putting this surgery financially out of reach of many transgendered individuals and, based on appropriate medical standards, virtually impossible for anyone under the age of 18. Thus, the association believes transgendered individuals should be able to obtain a birth certificate that is consistent with their gender identity more easily and without going through expensive surgery that is often either a very late-stage step in the gender affirmation process or a step that the individual chooses never to take at all. The bill still requires documentation from a healthcare provider that the person requesting an amended birth certificate has undergone clinically appropriate treatment based on contemporary medical standards. The association believes this provision is more than sufficient to limit the availability of amended birth certificates to those people who should have them.

Municipal Court Practice

A-2662 (Wolfe) (NJSBA opposes) Requires the family part, under certain circumstances, to dispose of a charge of contempt of a domestic violence order on an emergent basis, without setting bail. On Feb. 20, the bill was introduced and referred to the Assembly Women and Children Committee.

The New Jersey State Bar Association has constitutional concerns with this legislation, which would eliminate the presumption of innocence in certain cases by denying bail. While not an explicit constitutional right, the presumption of innocence has been held by the courts to be an implicit guarantee of the Fifth, Sixth and 14th amendments of the U.S. Constitution. That presumption is overridden in this legislation only on the basis of a prior arrest. Furthermore, all defendants have a constitutional right to have a judicial bail hearing and an opportunity to be considered for bail in accordance with applicable law pertaining to bail factors and criteria. The association believes this bill reduces the efficiency and effectiveness of the current bail process by restricting the number of persons whose bail applications may be considered and eliminates the discretion of judges to consider all factors when setting bail. Finally, the association believes by permitting the elimination of bail in these cases a slippery slope might be created whereby the right to bail is eliminated in other cases, as well.